Talmud - Bava Metzia 99a בבא מציעא צ״ט א׳

GEMARA: The mishna states that if the borrower agrees to have the lender send the cow by the hand of the lender’s slave, and it died on the way, then the borrower is liable. The Gemara asks: But isn’t the hand of a slave legally like the hand of his master; as long as the cow is in the possession of the lender’s slave, it is not considered to have left the lender’s possession. Why, then, is the borrower liable?

The Gemara presents two resolutions: Shmuel said: The mishna is referring to a Hebrew slave, whose master does not acquire his person. Therefore, property in the slave’s possession is not considered to be in his master’s possession. Rav said: You may even say that the mishna is referring to a Canaanite slave, as this case may be considered like one in which the borrower said to the lender: Hit the cow with a stick and then it will come on its own to me. Just as in that case the borrower is liable once the cow leaves the lender’s domain, so too in this case he is liable once the cow leaves the lender’s domain, irrespective of the fact it was brought by the lender’s slave.

The Gemara raises an objection from a baraita: If one borrows a cow; and, with the agreement of the borrower, the lender sends it to him by the hand of his son or by the hand of his agent; and it dies on the way, then the borrower is liable. If the lender sent it by the hand of his slave, then the borrower is exempt. The final clause appears to contradict the mishna’s ruling.

The Gemara elaborates: Granted, according to the resolution of Shmuel, one can explain that the mishna is referring to a Hebrew slave, whereas the baraita is referring to a Canaanite slave. But according to the resolution of Rav, who maintained that the mishna is referring to a Canaanite slave, the contradiction is difficult.

The Gemara presents a modified version of Rav’s resolution: Rav could say to you: Do not say in explanation of the mishna that the case may be considered like one in which the borrower said to the lender: Hit the cow with a stick and then it will come on its own. Rather, say that it is referring to a case where the borrower actually said to the lender: Hit the cow with a stick and then it will come to me on its own. Accordingly, one can explain that the baraita is referring to a case where he did not say this, and therefore, as long as the cow is still in the possession of the slave, the borrower is not liable.

As it was stated: One said to another: Lend me your cow. And the lender said to the borrower: By whose hand shall I send it? And the borrower said to him: Hit the cow with a stick and then it will come on its own to me. Rav Naḥman says that Rabba bar Avuh says that Rav says: In this case, the halakha is that once the cow left the domain of the lender and then it died, the borrower is liable.

The Gemara suggests: Let us say that the following baraita supports this opinion of Rav: One said to another: Lend me your cow. And the lender said to the borrower: By whose hand shall I send it? And the borrower said to him: Hit the cow with a stick and then it will come on its own to me. The halakha is that once the cow left the domain of the lender and then it died, the borrower is liable.

Rav Ashi said that the baraita is not a conclusive proof of Rav’s opinion. It is possible to say: With what are we dealing here; with a case where the courtyard of the borrower is situated further in from the public domain than the courtyard of the lender, such that when the lender sends the cow to him, it will certainly go to there. Consequently, the borrower is willing to accept liability from the moment the lender sends it.

The Gemara asks: If so, if that is the case addressed in the baraita, what is the purpose of stating this halakha? It is obvious. The Gemara explains: No, it is necessary for the case of a courtyard in which there are corners. Lest you say: The borrower does not rely on the possibility that the animal will come to him, as perhaps the animal will go and stand there in one of the corners and not come straight to the borrower’s courtyard, the baraita therefore teaches us that even in such a case he relies on the assumption that the cow will nevertheless come to him, and so he accepts liability.

§ Rav Huna says: In the case of one who borrows an ax from another, once he has chopped wood with it, he has acquired it, but as long as he has not chopped wood with it, he has not acquired it.

The Gemara clarifies: With regard to what matter does one acquire the ax? If we say he has acquired it for the purpose of being liable for unavoidable mishaps, i.e., his liability as a borrower begins once he uses the ax, then one could ask: What is different when one borrows a cow, that one is liable as a borrower from the moment of borrowing, even before one makes use of it? Rather, Rav Huna refers to one’s right of retraction, as follows: Once the borrower has chopped wood with it, the lender cannot renege on his commitment to lend the item, but as long as the borrower has not chopped wood with it, the lender can renege on his commitment to lend the item and prevent the borrower from borrowing the item.

And with this opinion, Rav Huna disagrees with the opinion of Rabbi Ami, as Rabbi Ami says: One who lends another an ax that is of property consecrated to the Temple treasury has there by misused consecrated property. He is liable to pay the Temple treasury according to the financial advantage he received from lending the ax. And despite this, that other person, i.e., the borrower, is permitted to chop wood with it ab initio.

The Gemara explains how it is apparent that Rabbi Ami disagrees with Rav Huna: And if one holds that the borrower does not acquire the ax from the moment of borrowing, why has the lender misused consecrated property? To be liable for misuse of consecrated property, one must acquire the item, thereby removing it from the Temple treasury. And furthermore, why is that other person permitted to chop wood with it ab initio? If the borrower does not acquire the ax from the moment of borrowing, let the borrower return the ax and not acquire it, and consequently the lender will not have misused consecrated property, as it will have turned out that nothing significant occurred. Rather, it is evident that Rabbi Ami holds that the act of lending is fully completed as soon as the borrower takes the ax, even before he has used it.

And furthermore, with this opinion, Rav Huna disagrees with the opinion of Rabbi Elazar, as Rabbi Elazar says: In the same way in which the Sages instituted for buyers that they can acquire an item by pulling it, and from that point the transaction is completed, so too they instituted for bailees that their rights and responsibilities are initiated by their pulling the item they agreed to safeguard, and from that point the transfer of the item to the bailee is completed.

This opinion of Rabbi Elazar is also taught in a baraita: Just as the Sages instituted for buyers that they can acquire an item by pulling it, so too they instituted for bailees that their rights and responsibilities are initiated by them pulling the item they agreed to safeguard. And just as

Traduction : The William Davidson digital edition of the Koren Noé Talmud, with commentary by Rabbi Adin Even-Israel Steinsaltz.

BavaMetzia 99a examines a borrower's liability when a borrowed cow dies in transit, debating whether a lender's slave counts as an extension of his master.